The Supreme Court would rather you not follow public proceedings

January 14, 2010

I think lost amid all the coverage of the incredibly tragic Haiti earthquake was Monday’s temporary stay by the Supreme Court of a YouTube broadcast of San Francisco’s Federal District Court proceedings in the trial against California’s Poposition 8 (officially Perry v. Schwarzenegger), which voters enacted into law last year to define marriage in California as strictly between a man and a woman.

Yesterday, that temporary stay was turned into a permanent ban against District Judge Vaughn Walker’s decision to allow the trial to be broadcast in other federal courts around the country and on YouTube after the fact in a 5-4 decision by the Court.

Regardless of which side you fall on in the gay marriage debate (full disclosure: I support it), you should be disappointed that our nation’s highest court has decided that such a potentially groundbreaking and socially important trial ought not to be viewed in a public forum.

It’s an unfortunate pass at taking a step forward, at broadening the scope of democracy and at engaging the American public in its legal system.

As Justice Stephen Breyer wrote in the dissent, “The public interest weighs in favor of providing access to the courts.”

It should be so with all federal court proceedings, including the Supreme Court, excepting only the extreme cases in which either people’s personal safety or national security would be put at risk by a public trial.

“The public’s interest in access to information is strong. It is stronger still when the topic is one of such public importance and the focus of such public debate and scrutiny. This is the reality with which Judge Walker was trying to grapple. He did so by encouraging dissemination of judicial information through a medium that is cheap, accessible and likely to reach those individuals around the country who have a vested interest in the proceedings, but cannot attend court personally.”

And, perhaps just as disappointingly, the Court’s decision has little to do with actual legal concerns and everything to do with political concerns. And, predictably, the justices voted along partisan lines. As Slate’s Emily Bazelon put it:

“In barring video of Perry v. Schwarzenegger, the court split 5-4, conservatives vs. liberals. The question addressed—whether the California district court properly amended its broadcasting rule—has nothing to do with ideological politics, on its face. But because the trial is about same-sex marriage, it’s all about the politics roiling underneath. And as in Bush v. Gore, the majority reached out and grabbed this appeal when no one expected it to.”

“But there is a strong legal case that California voters trespassed on the Constitution when they approved Proposition 8. The courtroom battle now unfolding bears close watching, and the Supreme Court should not stand in the way of Americans viewing it and reaching educated judgments.”

As a Californian, I’m disappointed. As an American, I’m disappointed. And as an advocate of open democracy, I’m disappointed. And whether you are for or against gay marriage, you should be too.

The politicizing of an important decision affecting the trial of a monumentally important social issue by our Supreme Court should be unacceptable in this day and age. We should be beyond that by now.